Kidder v. Vandersloot

Mr. Justice Craig delivered the opinion of the Court: On the 6th day of March, 1874, George Kidder borrowed of G. A. Vandersloot $2500. To secure the payment of the money, Kidder conveyed to Vandersloot a certain tract of land, consisting of eighty acres, in Knox county. At the same time Vandersloot gave Kidder a contract, in writing, by the terms of which he agreed to convey the land to Kidder providing the latter paid $2500 March 6, 1879, $270 March 6, 1875, and the same amount on March 6, 1876, 1877, 1878 and 1879. Vandersloot treated the deed and the contract as a mortgage, and Kidder, the mortgagor, having died, this bill was brought, against the heirs of Kidder, to foreclose the mortgage. In the answer, the defendants set up as a defence, usury, and payment. But the court, on the hearing, upon the pleadings and evidence, rendered a decree for the amount claimed in the bill. Alvin Kidder, one of the defendants, appealed. In the bill the complainant alleged the execution and delivery of the deed from Kidder to himself, and averred that the deed was a mortgage; that a contract was executed at the same time, and as a part of the same transaction, by which Kidder, the mortgagor, agreed to pay $250 annually, as rent. When the contract was produced on the trial of the cause, it provided for the payment of $270, and not $250, as alleged, and it is contended that there was a fatal variance between the bill and the evidence. The practice in causes in equity is well settled that the proofs must be responsive to the allegations in the bill. But while we fully recognize and adhere to the general rule, we do not regard the variance here, as to the amount, a material one. (See Breckenridge v. Ostrom, 79 Ill. 71.) Besides, the allegation was not merely that $250 was to be paid, but it was that $250 was to be paid and also that Kidder further agreed to pay the taxes on the land. Now, while the written contract, on its face, shows that $270 was to be paid annually, it turns out, from the evidence, that $20 of this amount was to cover the taxes on the land, and the balance ($250) was to be paid as interest for the money loaned. The substance of the transaction.was, as alleged in the bill, that Kidder was to pay $250 annually, and the taxes, and when due consideration is. given to all the evidence bearing on the question, we can not say that there was a substantial variance between the allegations and proofs. It is also urged that the court erred in admitting parol evidence to change or vary the terms of the written contract, which provided for the annual payment of $270. The general rule is, as claimed, that parol evidence is not admissible to change the terms of a written contract. But this rule has its exceptions. A promissory note, which is a written contract, may upon its face show a valid consideration for the promise to pay money, and yet parol evidence ds admissible to show a want of consideration. Parol evidence may be admitted to prove the consideration of a deed different from that expressed in the instrument. Other examples might be given where the general rule may be varied, but it is unnecessary. Here usury was pleaded, and parol evidence has always been allowed in such cases, regardless of the form the transaction may assume in the Writings executed by the parties. It is also claimed that the court erred in not finding the transaction usurious. The amount loaned was $2500. At the time of the loan ten per cent, where the parties agreed upon that amount, was a legal rate of interest. The com-' plainant had the right, therefore, to contract for and receive $250 interest, annually, on the loan. But it is insisted that the agreement which complainant’ delivered to Kidder provided for the payment of $270 annually, and that this contract rendered the transaction usurious. It was not proven that more than $250 annually, was ever actually paid. On the other hand, the proof is positive that at the end of the second year only $250 was paid as the interest for that year, and as to the other two years in which the interest was paid, the evidence preponderates in favor of that amount, and no more, having been paid. George H. Littlewood was present when the contract was made between complainant and Kidder for the loan, and drew the papers for the parties. He testified that the money was loaned at ten per cent, and that was all that was to be paid as interest,— that the $20 was added for the taxes on the land each year. The land had been conveyed to complainant, and he held the legal title, and would be liable, of course, for the taxes, unless Kidder saw proper to pay them. . In order to guard against .loss on this account the taxes on the land were estimated at X $20 each year, and this amount Kidder agreed to pay. The agreement was merely this : Kidder agreed to pay ten .per cent interest on the money loaned,— amounting to $250,— and also agreed to pay the taxes annually assessed on the land. Suppose, in lieu of giving a deed and taking a contract for a reconveyance, Kidder had given a note, and mortgage on the land to secure it, and in the note and mortgage agreed to pay $250 annually, as interest, and also all taxes on the land, estimated at $20, such a contract would not be regarded usurious,—and there is no difference in principle between the case supposed and the facts presented by this record. The $20 -was inserted in the contract as a guaranty that the taxes would be paid, and when Kidder produced satisfactory evidence that the taxes had been paid, and paid the $250 due as interest, the $270 was receipted on-the contract. The fact that the interest to be jiaid each year was only $250, was proven by a number of witnesses who had talked with Kidder in his lifetime, and he admitted to them that he had borrowed from.complainant $2500, and was paying that amount of interest, and that he owned the land, and had to pay the taxes each year, amounting to some $20. We think the transaction free from usury, and the decision of the Appellate Court will be affirmed. Decree affirmed.